B-121339, JANUARY 31, 1955, 34 COMP. GEN. 352

B-121339: Jan 31, 1955

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RETURNED TO THE UNITED STATES BY COMMERCIAL AIR AT PERSONAL EXPENSE IS NOT ENTITLED TO REIMBURSEMENT FOR THE PORTION OF THE OFFICER'S CLAIM RELATING TO VOLUNTARY DELAYED TRAVEL OR FOR OCEAN TRANSPORTATION OF WIFE WHEN SUITABLE GOVERNMENT TRANSPORTATION WAS AVAILABLE. 1955: REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 2 AND 17. YOU WERE RELEASED FROM ACTIVE DUTY OVERSEAS. THAT YOUR WIFE WAS OVERSEAS AT THAT TIME. YOU WERE ALLOWED $371.64. REIMBURSEMENT FOR THE OCEAN TRAVEL WAS DENIED FOR THE REASON THAT GOVERNMENT TRANSPORTATION REPORTEDLY WAS AVAILABLE. SINCE NO PROVISION IS MADE FOR REIMBURSEMENT TO AN OFFICER WHO VOLUNTARILY PERFORMS OCEAN TRAVEL AT HIS OWN EXPENSE. THERE IS NO LEGAL BASIS.

B-121339, JANUARY 31, 1955, 34 COMP. GEN. 352

TRANSPORTATION - DELAYED RETURN TO UNITED STATES OF ARMY OFFICER AND DEPENDENT - AVAILABILITY OF GOVERNMENT TRANSPORTATION AN ARMY OFFICER WHO, WITH WIFE, REMAINED OVERSEAS FOLLOWING HIS RELEASE FROM ACTIVE DUTY UNTIL SHORTLY BEFORE EXPIRATION OF THE PERIOD OF ENTITLEMENT OF THE DEPENDENT TO TRANSPORTATION AT GOVERNMENT EXPENSE UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AND WHO, WITH WIFE, RETURNED TO THE UNITED STATES BY COMMERCIAL AIR AT PERSONAL EXPENSE IS NOT ENTITLED TO REIMBURSEMENT FOR THE PORTION OF THE OFFICER'S CLAIM RELATING TO VOLUNTARY DELAYED TRAVEL OR FOR OCEAN TRANSPORTATION OF WIFE WHEN SUITABLE GOVERNMENT TRANSPORTATION WAS AVAILABLE.

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 2 AND 17, 1954, IN EFFECT REQUESTING REVIEW OF THAT PART OF THE SETTLEMENT OF AUGUST 24, 1954, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL PERFORMED BY YOU AND YOUR WIFE FROM TOKYO, JAPAN, TO LOS ANGELES, CALIFORNIA.

THE RECORD SHOWS THAT BY PARAGRAPH 25, SPECIAL ORDERS NO. 160, HEADQUARTERS FOURTH REPLACEMENT DEPOT, APO 703, DATED JUNE 25, 1947, YOU WERE RELEASED FROM ACTIVE DUTY OVERSEAS; THAT YOUR WIFE WAS OVERSEAS AT THAT TIME; THAT YOU REMAINED OVERSEAS AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY UNTIL JUNE 28, 1952, FOLLOWING WHICH YOU ENTERED PRIVATE EMPLOYMENT IN JAPAN; AND THAT YOU AND YOUR WIFE TRAVELED AT PERSONAL EXPENSE DURING THE PERIOD APRIL 14 TO 29, 1953, FROM TOKYO TO LOS ANGELES BY COMMERCIAL AIR, THENCE TO RED BANK, NEW JERSEY, BY PRIVATELY OWNED AUTOMOBILE. YOU WERE ALLOWED $371.64, REPRESENTING MILEAGE FOR YOU AND REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM LOS ANGELES, CALIFORNIA, TO RED BANK, NEW JERSEY. REIMBURSEMENT FOR THE OCEAN TRAVEL WAS DENIED FOR THE REASON THAT GOVERNMENT TRANSPORTATION REPORTEDLY WAS AVAILABLE.

SINCE NO PROVISION IS MADE FOR REIMBURSEMENT TO AN OFFICER WHO VOLUNTARILY PERFORMS OCEAN TRAVEL AT HIS OWN EXPENSE, THERE IS NO LEGAL BASIS, IN ANY EVENT, FOR THE ALLOWANCE OF THE PORTION OF YOUR CLAIM RELATING TO YOUR DELAYED TRAVEL. AS AN OFFICER WITH A DEPENDENT (WIFE) YOU BECAME ENTITLED UPON RELEASE FROM ACTIVE DUTY OVERSEAS IN 1947 TO GOVERNMENT TRANSPORTATION FOR YOUR WIFE TO THE UNITED STATES, SUCH TRANSPORTATION TO BE NOT OTHER THAN BY GOVERNMENT TRANSPORT, IF AVAILABLE. SECTION 12, PAY ADJUSTMENT ACT OF 1942, 56 STAT. 364. SUCH RIGHT TO TRANSPORTATION ACCRUED AND BECAME FIXED AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY. APPLICABLE LAW AND REGULATIONS CONTEMPLATE THAT AN OFFICER SHALL EXERCISE ANY RIGHT HE MAY HAVE TO TRANSPORTATION OF DEPENDENTS INCIDENT TO HIS RELEASE FROM ACTIVE DUTY WITHIN A REASONABLE TIME, USUALLY WITHIN ONE YEAR FROM DATE OF RELEASE. BECAUSE OF WAR CONDITIONS, REGULATIONS WERE ISSUED IN 1945 EXTENDING THE TIME WITHIN WHICH OFFICERS RELEASED FROM ACTIVE DUTY MIGHT BE FURNISHED TRANSPORTATION FOR THEIR DEPENDENTS TO THEIR HOME TO ONE YEAR AFTER TERMINATION OF THE WAR IF LATER THAN ONE YEAR AFTER DATE OF RELEASE. WORLD WAR II WAS ENDED OFFICIALLY ON APRIL 28, 1952, THUS FIXING APRIL 27, 1953, AS THE TERMINAL DATE FOR TRANSPORTATION OF DEPENDENTS OF OFFICERS RELEASED FROM ACTIVE DUTY MORE THAN A YEAR BEFORE. HOWEVER, SUCH EXTENSION OF TIME IN WHICH TO PERFORM TRAVEL DID NOT CHANGE THE NATURE OF THE AUTHORIZED TRANSPORTATION. IF, AT THE END OF YOUR SOJOURN IN JAPAN AS A FOREIGN BUSINESSMAN, YOUR WIFE'S HEALTH HAD DECLINED TO A DEGREE WHICH MADE TRAVEL BY GOVERNMENT TRANSPORT IMPRACTICAL, NEITHER THAT FACT NOR THE IMPENDING EXPIRATION OF THE PERIOD OF ENTITLEMENT TO TRANSPORTATION AT GOVERNMENT EXPENSE INCREASED THE OBLIGATION OF THE GOVERNMENT IN THE MATTER.

REGULAR GOVERNMENT WATER TRANSPORT SERVICE BETWEEN JAPAN AND THE WEST COAST OF THE UNITED STATES WAS MAINTAINED DURING THE PERIOD FOLLOWING YOUR SEPARATION IN JAPAN AS A CIVILIAN EMPLOYEE OF THE UNITED STATES. ALSO, IT IS ADMINISTRATIVELY REPORTED THAT THE MILITARY AIR TRANSPORT SERVICE MAINTAINED FREQUENT SCHEDULES BETWEEN JAPAN AND CONTINENTAL UNITED STATES FOR THE MOVEMENT OF DEPENDENTS ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE. IT IS THUS APPARENT THAT SUITABLE GOVERNMENT TRANSPORTATION IN KIND COULD AND WOULD HAVE BEEN FURNISHED HAD TIMELY REQUEST BEEN MADE. THIS BEING SO, IT MAY NOT BE CONCLUDED THAT GOVERNMENT TRANSPORTATION WAS UNAVAILABLE. IT FOLLOWS THAT THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF YOUR DEPENDENT'S TRAVEL TO THE UNITED STATES BY COMMERCIAL MEANS.